175 F. Supp. 764, *; 1958 U.S. Dist. LEXIS 2975, **;
43 L.R.R.M. 2217; 36 Lab. Cas. (CCH) P65,072
John CUNNINGHAM et al., Plaintiffs, v. John F. ENGLISH et al.,
Defendants
Civ. A. No. 2361-57
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
175 F. Supp. 764; 1958 U.S. Dist. LEXIS 2975; 43 L.R.R.M.
2217; 36 Lab. Cas. (CCH) P65,072
December 11, 1958
CORE TERMS:
convention, recommendation, membership, notice, merger, duty,
check-off, elected, modify, rank and file, provisionally, modification, local
union, effective date, election, corrupt, adduced, decree, bosses, reformation,
Second Amendment, proper interpretation, constitutional rights, conflict of
interest, set forth, one year, unincorporated, consolidation, disqualified,
dissolution
COUNSEL: [**1]
Martin F. O'Donoghue, Washington, D.C.,
Chairman of and attorney for the Monitors.
Edward Bennett Williams,
Washington, D.C., for Teamsters.
Godfrey P. Schmidt, New York City, for
plaintiffs.
OPINIONBY: LETTS
OPINION: [*766]
After twenty-two days of trial
and when the plaintiffs had rested their case, the parties presented to the
Court the consent order which is involved herein. The Court was not called upon
to weigh the evidence which had been adduced.
The plaintiffs are rank
and file members of the International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, an unincorporated association. The
defendants are an unincorporated association, and the officers thereof who were
elected at the 1957 convention held in the City of Miami, Florida.
The
action had been brought to restrain such officers so elected from assuming the
duties of their offices upon the ground that the convention had been rigged and
that the election of such officers was not an expression of the membership of
such International Brotherhood. As a matter of convenience throughout this
Memorandum the International Brotherhood above mentioned and the individual
defendants will be [**2] referred to as the
Teamsters.
By the consent order the individual defendants were permitted
provisionally to assume the duties of the offices to which they had been
elected.
Several motions are before the Court for decision. They will be
dealt with separately. Because of its overall importance, the Court will first
consider the petition of the Monitors for construction, reformation and/or
modification of the consent order. The power and authority of the Court to
reform or modify the consent order is challenged, it being asserted by the
Teamsters that the consent order must be read literally. It seems appropriate
that consideration of such question should have first consideration. The law
relating to this controversy is fully expounded by Justice Cardozo in United
States v. Swift & Co., 286 U.S. 106, 52 S.Ct. 460, 462, 76 L.Ed. 999,
wherein it is said:
'We are not doubtful of the power of a court of
equity to modify an [*767] injunction in
adaptation to changed conditions, though it was entered by consent. * * * Power
to modify the decree was reserved by its very terms. * * * If the reservation
had been omitted, power there still would be by force of principles inherent
[**3] in the jurisdiction of the chancery. A
continuing decree of injunction directed to events to come is subject always to
adaptation as events may shape the need. * * * We reject the argument for the
interveners that a decree entered upon consent is to be treated as a contract
and not as a judicial act.'
The law so stated by Justice Cardozo has to
the knowledge of this Court never been disturbed, altered or in any manner
changed. The conclusion is reached that a construction of the consent order
requires a determination of the basic purpose for which the order was entered.
Bearing in mind that the individual defendants were permitted provisionally to
assume office, it is clear from a reading of the consent order, that the basic
purpose of the order was to pave the way for a new convention of the
International Brotherhood and for a new election of officers in accordance with
the provisions of the International constitution. The consent order was entered
with the tacit understanding that the evidence which had been adduced at the
trial for the purpose of establishing plaintiffs' claim that the Miami
convention was rigged through corrupt practices for the purpose of permitting
the leaders [**4] to control the action of the
convention by depriving the rank and file membership of their democratic
processes in the selection of delegates to such convention tended to prove that
claim.
The consent order provided for the appointment of a Board of
Monitors one member to be selected by plaintiffs, one by the defendants and the
third by the Court. The question arises as to what powers the Board of Monitors
has. The Court is of opinion and holds that their powers were not limited but
included all proper efforts on the part of the Board to assure the rank and file
membership of the International organization that a new convention would be
conducted according to the provisions of the International constitution and
assuring the membership that their democratic processes would not be violated.
In other words, the Board of Monitors was empowered to exert every known method
of achieving the basic purpose as set forth in the consent order, to wit, that a
new convention would be free of corruption and in recognition of the rights of
the membership.
It was tacitly understood that the evidence which had
been adduced showed that officials of the International organization and of many
of [**5] the Locals were corrupt and a menace to
the constitutional rights of the members. It, therefore, became necessary for
the Monitors to proceed to see that the International and the Locals were freed
of corrupt influences by the processes of a general housecleaning. The
activities of the Monitors to accomplish such purpose gave rise to many of the
difficulties presented by the motions now before the Court. The consent order
places this duty and responsibility upon the Board of Monitors.
It must
be kept in mind that the Monitors are officers of the Court and subject to its
supervision and direction to effectuate the order according to its spirit and
basic purpose. The Court does not subscribe to the view that the duties and
privileges of the Monitors were merely advisory.
It is true that in the
early days of the monitorship the Teamsters gave substantial compliance with the
orders of recommendation but it may be observed that it those early days the
work of the Monitors was preparatory to its vital purposes. The trouble arose
when the Monitors proceeded to clean up the International organization and many
of the Locals by seeking the dismissal of persons in position of power and
[**6] authority who were known to be or suspected
of being trouble makers and of a mind to control elections and conventions
contrary to the constitutional rights of the [*768] members. At about this time the Monitors also set
out to install by-laws in the Locals which would insure to the membership honest
and uncontrolled elections. It was at this point that the Teamsters began to
frustrate and block the Monitors in their efforts. In some instances they even
refused to confer with the Monitors in a way which amounted to an unspoken
rejection of the recommendations of the Monitors. This was in violation of their
rights, knowing that if they doubted the reasonableness of such recommendations
or doubted that the recommendations were pertinent to the basic purpose of the
order, they had recourse to the Court. Upon such matters of disagreement,
recourse has always been available to the Court for its ruling and determination
of the existing controversy.
As has been indicated, the consent order is
not to be construed by a literal reading of its provisions. The Monitors are
officers of the Court and their powers are not limited by the grant of express
powers. All other powers reasonably [**7]
necessary to effect the basic purposes of the order are implied and available to
the Monitors and in view of changed circumstances the inherent powers of the
Court are at command to achieve the basic purposes of the order.
Such
changed circumstances arose and have continued since the Teamsters ceased
cooperation with the Monitors and refused or ignored the reasonable and relevant
requests of the Monitors. The conduct of the Teamsters in such respect was in
disregard of their obligations to afford good faith compliance with the
reasonable and pertinent orders of recommendation issued by the Monitors.
Such rejection of the orders of recommendation was with full knowledge
that the individual defendants were permitted provisionally to assume the duties
of the offices to which they have been elected.
The language of the
consent order carries the meaning that such permission to assume office is
temporary and granted in view of existing known conditions and of assumed
obligations. By definition and by nature a provision of this kind is subject to
change.
The Court has examined each of the orders of recommendation
mentioned in the petition of the Monitors for construction, reformation [**8] and/or modification of the consent order as amended.
The Court finds that each of such orders of recommendation is reasonable and
relevant to the basic purposes of the consent order. The Teamsters are obliged
to comply with such orders of recommendation and in good faith cooperate with
the Monitors to achieve the purposes expressed therein.
It is
unnecessary to specifically comment on the several orders of recommendation
which have been ignored by the Teamsters. The Court, however, will mention them
by number, namely, Numbers 4, 11, 12, 14, 16, 17, 18, 19, 20 and 21. As has been
stated, each of these orders of recommendation is reasonable and relevant to the
basic purposes of the consent order and is deemed to be of primary importance in
the work of the Monitors.
When the consent order was considered and
agreed upon it was believed that necessary preparation to assure that a new
convention would be organized and conducted honestly without dictation of the
bosses and in full accord with democratic principles in the interest of the dues
paying members would be accomplished within one year and so the consent order
was written in the belief and understanding that good faith compliance [**9] would be accorded by the Teamsters. Since the
Teamsters have failed in that requirement and since the Teamsters have blocked
and obstructed the efforts of the Monitors to achieve the necessary clean-up in
the International and the Locals, the very essence of the consideration upon
which the time element rested has been completely destroyed. The Court finds it
necessary to modify and amend the consent order by deleting therefrom the
privilege granted the Teamsters of calling a new convention after one year and
inserting the following provision:
[*769] 'The time for the convention shall be subject to
recommendation by the Board of Monitors to the General Executive Board of the
International, with the exact time of holding the convention being subject to
the final approval of the Court.'
The foregoing modification of the
consent order becomes imperative since the Teamsters have, without the knowledge
and consent or approval of the Board of Monitors or of the Court, issued a call
for a convention in the early part of March, 1959. Such action on the part of
the Teamsters was in disregard of their obligation to make good faith effort to
pave the way for the new convention by cleaning [**10] house and making preparation for the return of
control to the rank and file membership through democratic processes. The Court
now declares such attempt to call a new convention is null and void and the
Teamsters are ordered to promptly give appropriate notice to the membership that
the convention will not be held as announced in the call.
The failure of
the Teamsters to cooperate and to accord good faith compliance with the orders
of recommendation of the Monitors to achieve the basic purposes of the consent
order has occasioned loss of valuable time. Now that the views of the Court
respecting many matters in dispute are known the Court will expect prompt
compliance with such orders of recommendation which have been made and such
reasonable orders of recommendation as may be made by the Monitors touching the
matter of house-cleaning and compliance with all provisions tending to assure
that the next convention will be organized and conducted honestly in such a
manner as to be free of control by labor bosses while promoting in all respects
the interest of the dues paying members.
Remedies are not lacking in our
judicial processes if the orders of the Court are violated, disregarded [**11] or ignored. As of now they need not be mentioned
or considered.
The Second Amendment to the Petition for Construction
requests the Court (a) to instruct the Monitors concerning the proper
interpretation of Article X, Section 5(c) of the 1952 International
Constitution; (b) to instruct the Monitors concerning the proper interpretation
of the 1957 Amendment to Article X, Section 5(c) of the International
Constitution dealing with the payment of one month's dues in advance by those
members on check-off to insure their good standing; and (c) to determine whether
or not there had been sufficient publication of the 1957 Amendment as a matter
of law and whether there was a denial of due process. The Board raised these
issues specifically with respect to Local 377 in Youngstown.
Under order
of recommendation No. 23, regarding the eligibility of Joseph Larry Carrelly,
William James Gaw and Joseph Sammartino, who were nominated for office in Local
Union No. 377 of Youngstown, Ohio, the Board of Monitors ruled that there had
not been proper promulgation of the 1957 Amendment to Article X, Section 5(c).
The Local in Youngstown did not publish or post this Amendment on any bulletin
boards [**12] and did not give notice to the
members of the effective date of this Amendment. Carrelly did not receive a copy
of the March issue of the International Teamster and Sammartino and Gaw did not
read the notice that appeared in the March issue. These men were working under a
check-off and their employer paid the dues later than the first of the month.
Further, these applicants had no opportunity to pay one month's dues in advance
because they did not know of the Amendment and were not given reasonable notice
of when the Amendment would be put into effect. Thus, there was a denial of due
process in the application of this Amendment.
The 1957 Amendment to
Article X, Section 5(c) was purportedly promulgated by being published in the
March, 1958, issue of the International Teamster and that notice, a copy of
which was attached to the Second Amendment as Monitors' [*770] Exhibit No. 27, stated that the Amendment was
'now in effect'. The 1957 Constitution became effective on January 31, 1958,
with the entering of the consent order. Hence, this Amendment was effective on
February 1 and March 1, 1958, and members who had not paid one month's dues in
advance on those dates were disqualified. [**13]
When it went into effect, members immediately became disqualified to run for
office. The notice in the March issue stating that the new requirement was 'now
in effect' is a clear indication that it was in effect on March 4 or 5. There
was no prospective effective date stated.
Inasmuch as the membership did
not receive a reasonable time within which to comply with the new constitutional
requirement, General President Hoffa should be ordered to republish this
Amendment and put it into effect three months after its publication. Each local
union should post it on its bulletin boards three times and notify all members
of its publication and the effective date of the Amendment.
The Court
sees another general objection to the 1957 Amendment. Under the check-off system
the employer becomes the agent of the Union and as such withholds for the
benefit of the Union the dues owed by its member employees. The 1957 Amendment
requires payment of one month's dues in advance by members subject to the
check-off system in order to qualify as candidates for office. Members of the
Union not subject to the requirements of the check-off system who are, through
favor or otherwise, permitted to pay [**14]
their dues directly at the office of the Local are not required to make advance
payment of dues. Any such privileged member therefore has an advantage over
members subject to the system. The system affords the local labor bosses the
opportunity to control the management of the Locals by limiting the number of
members eligible for office. So operated the system amounts to a discrimination
in favor of members permitted to make direct payment over those subject to the
check-off system. It is a device by which incumbents are perpetuated in office.
Because of such discrimination it is contrary to public policy and invalid.
The Monitors have questioned the legality of the merger of Locals 183
and 959 in Alaska. No direct reference may be found in the national Constitution
as of 1952 nor as amended in 1957 to the subject so presented. Article XIX of
both 1952 and 1957 provides, 'No local union can dissolve, secede or
disaffiliate while there are seven dissenting members.' The official minutes of
the December 12, 1957, meeting of Local 183 of Fairbanks, Alaska, indicates that
twelve members voted against the consolidation of Local 183 and Local 959. The
Courts and the National Labor [**15] Relations
Board have set forth certain conditions which must be fulfilled. The
consolidated unions must be of comparable size and must have an equal voice in
deliberations; there must be an approximate equal division of officers between
the unions; and the consolidation must reflect a truly democratic expression of
the views of the membership. The Courts are in agreement that a vote taken on
such an important issue as dissolution or merger is void where the members have
not been sufficiently apprized beforehand that anything so far outside the
ordinary business of the union is to be presented at the meeting. This is
particularly true where the meeting as in the present case on December 12, 1957,
is a special and not a regular meeting. The notice given must be such that it
can reasonably be concluded that in the ordinary course of events the membership
generally if not entirely would have the opportunity of acquiring knowledge that
the meeting was to be held and of the business to be transacted. The notice of
the meeting must give its object and where the meeting is to deal with so
important a matter as dissolution or merger, it is not sufficient to state that
the meeting is very [**16] important. Notice
must be timely as well as specific. The official minutes of the December 12,
1957 meeting of Local 183 of Fairbanks reflect that the question of merger was
never presented as a single clear-cut issue. [*771] The approval of the merger was treated as a part
of or as a prerequisite to the request for the granting of autonomy and the two
questions were presented for a single vote.
The record does not disclose
that any sufficient and adequate notice had been given to the members that the
question of merger would be considered and voted upon. The Court thinks that for
this reason alone the merger so effected will be considered as void.
The
Court is asked to consider and determine the applicability of Rule 23(c),
Federal Rules of Civil Procedure, 28 U.S.C.A., to the facts of the case.
The Court is presently of the opinion that the Rule is not applicable
for the reason that the consent order is not a final settlement of any essential
issue. The controlling issue in the case arose from the request of the
plaintiffs that the individual defendants herein should not be permitted to
assume the duties of the offices to which they had been elected. Such issue has
[**17] not been determined. By the consent order
such officers so elected were permitted to proceed upon the duties of their
offices provisionally. Such permission was temporary only and subject to
revocation. The Court views the consent order as procedural and within the
control of the Court.
There has been presented to the Court for decision
the motion of the Teamsters to disqualify and remove Godfrey P. Schmidt as a
Monitor. The motion rests primarily upon the allegation that while serving as a
Monitor the said Schmidt has continued to represent employers in collective
bargaining negotiations with the International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America; that Schmidt's representation
of such employers having contractual relation with the International brotherhood
presents such a direct and clear conflict of interest on his part as to
disqualify him from further service as a Monitor pursuant to the Court order.
The Court finds that the Teamsters have failed to exhibit such conflict of
interest as alleged. Accordingly the motion seeking the removal of Schmidt as
Monitor is denied.
The Court requests the Chairman of the Board of
Monitors to present [**18] for the purposes of
the Court findings of fact, conclusions of law and an order consistent with this
Memorandum Opinion.